Opinion
11-P-967
01-19-2012
MICHAEL HOGAN v. CITY OF BOSTON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Michael Hogan appeals from a judgment of dismissal. On appeal, he argues that the judge improperly ruled that his sole remedy was through the applicable collective bargaining agreement (CBA), and that he was unable to pursue a private right of action under G. L. c. 41, § 111F. We affirm.
'We review the allowance of a motion to dismiss to determine whether facts alleged in the complaint raise a right to relief above the speculative level, on the assumption that all the allegations of the complaint are true.' Largo Realty, Inc. v. Purcell, 77 Mass. App. Ct. 162, 163 (2010). Taking the facts alleged in the complaint as true, Hogan worked as a firefighter with the city of Boston from 1997 until 2007, when he became incapable of returning to duty. From March 22, 2007, until January 12, 2008, when he was awarded accidental disability payments, he was on 'un-paid sick leave.' Hogan claims that he is entitled to benefits under G. L. c. 41, § 111F, but the city argues that pursuant to G. L. c. 150E, § 7(d), the CBA section on injury leave controls. We agree that the CBA is in conflict with G. L. c. 41, § 111F, and therefore Hogan was required to pursue his claim according to the CBA.
The relevant part of G. L. c. 41, § 111F, as amended through St. 1990, c. 313, states that 'whenever a . . . fire fighter . . . is incapacitated for duty because of injury sustained in the performance of his duty without fault of his own . . . he shall be granted leave without loss of pay for the period of such incapacity.' The CBA, on the other hand, contains a lengthy process a firefighter must follow in order to obtain injury leave. The CBA also specifically states that injury pay will be disbursed 'pursuant to the practice of the [c]ity of Boston [f]ire [d]epartment as interpreted and applied in the past by said [f]ire [d]epartment.' Furthermore, if there was a dispute regarding injury leave, the CBA contains a grievance procedure which Hogan was required to follow.
Pursuant to G. L. c. 150E, § 7(d)(e), as amended through St. 1998, c. 9, '[i]f a collective bargaining agreement reached by the employer and the exclusive representative contains a conflict between matters which are within the scope of negotiations pursuant to . . . sections one hundred and eleven to one hundred and eleven I, inclusive, of chapter forty-one[,] . . . the terms of the collective bargaining agreement shall prevail.' The judge determined that such a conflict existed, but Hogan argues that because of Willis v. Selectmen of Easton, 405 Mass. 159 (1989), the judge erred. We disagree. In Willis, the Supreme Judicial Court held the CBA was not in conflict with the statute, and therefore the plaintiff was not prohibited from pursuing a claim under G. L. c. 41, § 111F. Id. at 164-165. There, unlike here, the CBA contained 'only one provision in the collective bargaining agreement as relevant to [that] dispute.' Id. at 164. In Willis, the CBA essentially echoed the statute. Here, the CBA, as previously stated, contains extensive language regarding injury leave and the process governing injury leave. The CBA in this case also explicitly gives the city flexibility in the granting of leave by stating that benefits would be given 'pursuant to the practice of the [c]ity of Boston [f]ire [d]epartment.' Therefore, Hogan is not entitled to relief under G. L. c. 41, § 111F, and the judge properly allowed the motion to dismiss.
Judgment affirmed.
By the Court (Graham, Brown & Meade, JJ.),